Employing the Fair Use Exception:

Section 107 of the Copyright Law

Insert Date
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The following slides are based on the work of the

UCLA Library Scholarly Communications Steering Committee
 Todays Objectives
Review the rights of copyright owners
The Evolution of Fair Use
The Four-Factor Test
University Policy and Fair Use Guidelines
Tools and Tips
Actual Fair Use Cases for discussion
 Disclaimer
I am not an attorney, and cannot offer legal advice.

The following information is presented to educate

about copyright law and institutional policy in
general terms. If you are unclear about your
options when confronted with a specific legal issue
related to copyright, you are urged to consult with
an attorney with a background in copyright law.
Exclusive rights of copyright owners:106
(AKA the bundle of rights)
Reproduction: the right to make copies
Create adaptations (derivative works)
Distribute copies to the public
Perform the work publicly
o For sound recordings, limited right to perform
the work via digital audio transmission
Display the work publicly

The owner of a copyright may license or grant each of

these rights to others
 Exemption for Fair Use: 107
Fair Use is an affirmative defense
which allows the use of a work
protected by copyright without
obtaining permission from the
copyright owner.
 The Evolution of Fair Use

Fair Use is an equitable rule of reason

A judge-made test
Derived and grown through common law rulings
Endorsed by the 1976 Copyright Act (107),
though (allegedly) not strictly limited by the
factors enumerated in the law
 The Evolution of Fair Use
Some Early Cases
Folsom v. Marsh (1841)
o Justice Story defined the nice balance to be struck when
deciding if copyright (in G. Washingtons letters) has been
infringed.
the metaphysics of the law, where the distinctions are very subtle
and refined, and, sometimes, almost evanescent.
o Whether the subsequent use of an original is justified was
tested by a balance of the same factors we use today.
 The Evolution of Fair Use
Some Early Cases
The term Fair Use was apparently first used in
Lawrence v. Dana (1869).
In 1968, a federal court found that drawings based on
frames from the Zapruder film of JFKs assassination
published in a book were Fair Use.
o Notably, the court did not enumerate the four factors and
considered other relevant conduct (such as the historical
import of the images).
Time, Inc. v. Bernard Geis Associates (SDNY)
 The Evolution of Fair Use
Legislative Intent in 1976 Copyright Act
Congress said they were endorsing the purpose
and general scope of the judicial doctrine of Fair
Use but NOT freezing it.
Courts must be free to adapt the doctrine to
particular situations on a case-by-case basis.
Section 107 is intended to restate the present
judicial doctrine not to change, narrow or
enlarge it in any way.
 Full employment for lawyers
as a result!
Fair Use is more flexible than any other copyright exception
o Can provide an exception to any/all of the bundle of rights
o Adapts to new uses and new technologies
Fair Use is impossible to define apart from specific
circumstances
o A balancing test within judicial discretion
o Affirmative Defense? Or, the Boundary of the Right(s)?
Always an Assessment of Risk
Before weighing Fair Use, remember:
Its free to use if
You are the copyright owner
You have express permission
o The UCLA library licenses the material on your behalf
o A Creative Commons license grants permission
You have an implied license
o Linking to, and looking at, online materials
There is another specific statutory exception
o 110(1): live classrooms
o 110(2) (AKA the Teach Act): virtual classrooms
The work is in the Public Domain
 Handy Tools
ARLs
Know Your
Copy Rights
Brochure

http://www.knowyourcopyrights.org/
 107 of the Copyright Act of 1976
Notwithstanding the provisions of sections 106 and 106A, the fair use of a copyrighted
work, including such use by reproduction in copies or phonorecords or by any other
means specified by that section, for purposes such as criticism, comment, news
reporting, teaching (including multiple copies for classroom use), scholarship, or
research, is not an infringement of copyright. In determining whether the use made of a
work in any particular case is a fair use the factors to be considered shall include

(1) the purpose and character of the use, including whether such use is of a
commercial nature or is for nonprofit educational purposes;
(2) the nature of the copyrighted work;
(3) the amount and substantiality of the portion used in relation to the copyrighted
work as a whole; and
(4) the effect of the use upon the potential market for or value of the copyrighted work.

The fact that a work is unpublished shall not itself bar a finding of fair use if such
finding is made upon consideration of all the above factors.
How to Determine Fair Use
Four Factor Test:
Purpose and Character of
Use (commercial versus non-
profit educational)
Nature of Copyrighted
Work (fact versus imaginative
and published versus
unpublished)
Amount and Substantiality
of Portion Used
Market Effect
Image: http://loc.gov/pictures/resource/hec.09580/
Handy Tools
Cornells
Checklist for
Fair Use
 How it really works.
In spite of the language of openness (such as, factors shall
include), fair use has become a fairly mechanical test.
In practice,
o the first factor, The Purpose and Character of Use
and
o the fourth factor, Market Effect
are usually given the most weight in judicial opinions, even
though the Supreme Court has reiterated that the four factors may
not be treated in isolation. (Campbell v. Acuff-Rose,1994)
Because fair use is only certain in retrospect, it is VERY highly
contested
 Applying the factors:
1. Purpose and Character of use
Educational v. Entertainment/Commerce
Non-profit v. For Profit
Transformative v. Iterative
o Transformative uses heavily favored (parodies, collages)
Campbell v. Acuff-Rose (1994)
Bill Graham Archive v. Dorling Kindersley (2006)
o Educational/Research uses often iterative, can still be fair use
American Geophysical Union v. Texaco (1994)
Princeton Univ. Pr. v. Michigan Doc. Srv. (1996)
 Applying the factors:
2. Nature of the copyrighted work
Published v. Unpublished
Factual v. Fictional or highly creative
o Feist Publications v. Rural Telephone Srv. (1991)
Copyright protects expressions; small modicum
of originality is required
Does not protect facts or ideas, so no limits on
their reuse.
 Applying the factors:
3. Amount and substantiality of use
Less is always better in a fair use analysis
o Mich. Doc. Servs decision very clear that 30% of a book
was too much for fair use under those conditions.
o Nevertheless, transformative uses have been allowed that
use an entire work
Better if you do not use heart of the work
o Harper & Row v. Nation Enterprises (1985)
o However, using the heart of the work may be essential to
parody, and is often protected in Fair Use rulings
Unresolved conflict: dont the best academic excerpts pinpoint the
heart of the work for critical analysis?
 Applying the factors:
4. Impact on the Market
Traditional analysis
o How many copies are made?
o How widely are they distributed?
Digital technologies intensify above 2 concerns
o Is the use spontaneous, or repeated?
o Is the original available for sale or license?
Transformative use changes the market analysis
o i.e., Parody will not harm market for the original
Huge unresolved question: As market for permission grows more robust &
efficient, does fair use shrink?
 Fair Use and Contracts
It is possible to bargain away most rights by contract.
o A contract is a private law agreement that effects only the
parties to the contract.
o An explicit provision renouncing fair use probably would be
enforceable.
Agreement to not copy at all from a database, i.e.
UCLA Library avoids such language in license terms
Transfer of copyright in a publication agreement does
not renounce fair use.
o Original author, and employing institution, has the same fair
use defense as everyone else.
 Schools and libraries enjoy some
protection against damages
The court shall remit statutory damages in any case
where an infringer believed and had reasonable
grounds for believing that his or her use of the
copyrighted work was a fair use under section 107, if
the infringer was an employee or agent of a
nonprofit educational institution, library, or archives
acting within the scope of his or her employment who,
or such institution, library, or archives itself, which
infringed by reproducing the work in copies or
phonorecords
Copyright Act 504 (c) (2)
University Policy on Guidelines
Guidelines for the Reproduction of
Copyrighted Materials for Teaching and
Research April 29, 1986
This policy endorses a slightly-adapted version of
the Ad Hoc Committee guidelines.
A set of minimum standards for fair use interpretations of print
materials, intended to provide teachers with a safe harbor from
ambiguity. Any copying within these conservative standards could
safely be considered fair use.
http://www.ucop.edu/ucophome/coordrev/policy/4-29-86.html
Some Guideline Details

Single Copying for Teachers

Book chapter, article, short story, one chart
Multiple Copies for Classroom Use
Never more than one copy per student in the
class
Must meet detailed standards of Brevity and
Cumulative Effect (i.e., less than 250 words of a
poem)
 Important Points in the Policy
UCOP Guidelines are based on:
Agreement on Guidelines for Classroom Copying in Not-For-
Profit Educational Institutions with respect to Books and
Periodicals
The Agreement on Guidelines represent the minimum of what
is permissible, and adherence to this Safe Harbor avoids
litigation
UC Guidelines are identical to Ad Hoc, except there is no
spontaneity preference - but it should not be ignored in a fair
use analysis
The rights of the University and its faculty and student body
to copy are broader under the fair use doctrine, and the policy
leaves a loophole for such determinations
 University Policy on Guidelines
Fair use cannot always be expressed in numbers -
either the number of pages copied or the numbers
of copies distributed. Therefore you should weigh
the various factors in the Act to determine whether
the intended use of photocopied copyrighted
material is within the spirit of the fair use doctrine.
You should secure permission from the copyright
owner unless the intended use is clearly
permissible under fair use.
Excerpted from Guidelines for the Reproduction of Copyrighted Materials for
Teaching and Research April 29, 1986

http://www.ucop.edu/ucophome/coordrev/policy/4-29-86.html#unrestrict
 Tools and Tips
Cornells Fair Use Checklist
ARLs Know Your Copy Rights
brochure
Dukes Bound By Law? Comic Book
Code(s) of Best Practices
Actual Fair Use Decisions
Handy Tools
Cornells
Checklist for
Fair Use
Handy Tools
ARLs
Know Your
Copy Rights
Brochure
 Handy Tools
Dukes
Bound By Law?
Comic Book

http://www.law.duke.edu/cspd/comics/
 Code(s) of Best Practices
The Center for Social Media at American
University has produced a such codes for
Media Literacy Education and Documentary
Filmmaking
http://www.centerforsocialmedia.org/fair-use
The Association of Research Libraries is working on
a similar code for libraries
 Actual Fair Use Decisions
As mentioned
earlier, Fair Use
is impossible to
define apart
from specific
circumstances -
so lets look at
some.

Image Source: http://www.flickr.com/photos/seychelles88/351409399/

Case A
A company published a book
entitled Welcome to Twin
Peaks: A Complete Guide to
Who's Who and What's What,
containing direct quotations
and paraphrases from the
television show "Twin Peaks"
as well as detailed descriptions
of plot, character and setting.
Case A
Ruling: Not Fair Use
The amount of the material
taken was substantial and
the publication adversely
affected the potential
market for authorized books
about the program.

(Twin Peaks v. Publications Int'l, Ltd. 996

F.2d 1366 (2d Cir. 1993).)
Case B
Publisher Larry Flynt made
disparaging statements about
the Reverend Jerry Falwell on
one page of Hustler magazine
(pictured at right). Rev.
Falwell made several hundred
thousand copies of the page
and distributed them as part of
a fund-raising effort. Flynt
and Hustler claimed copyright
infringement.
 Case B
Ruling: Fair Use
Rev. Falwell's copying did not
diminish the sales of the
magazine (since it was
already off the market) and
would not adversely affect
the marketability of back
issues.
(Hustler Magazine, Inc. v. Moral
Majority, Inc., 606 F. Supp. 1526 (C.D.
Cal. 1985).
 Case C
Richard Wrights widow (who
was willed the copyrights to his
writings) claimed this
biographys use of the
unpublished Wright/Walker
letters and allegedly unpublished
journal entries (amounting to
less than 1% of his total letters)
constituted infringement. Also
claimed an agreement with Yale
where the letters were archived
trumped Fair Use.
 Case C
Ruling: Fair Use
All four factors favored
Fair Use, according to the
court and the Yale
agreement did not rule
out the Fair Use of the
material.
(Wright v. Warner Books, Inc., 953
F.2d 731 (2d Cir. 1991).)
 Case D
A biographer paraphrased
large portions of
unpublished letters written
by the famed author J.D.
Salinger. Although people
could read these letters at a
university library, Salinger
had never authorized their
reproduction. In other
words, the first time that the
general public would see
these letters was in their
paraphrased form in the
biography.
 Case D
Ruled: Not Fair Use
The unpublished letters were the
"backbone" of the biography--so
much so that without the letters
the resulting biography was
unsuccessful. In other words, the
letters may have been taken more
as a means of capitalizing on the
interest in Salinger than in
providing a critical study of the
author.
(Salinger v. Random House, 811
F.2d 90 (2d Cir. 1987).)
Case E

If you read the

New Yorker, you
may remember
this, one of their
most famous
covers.
 Case E
The movie Moscow on
the Hudson
incorporated a very
similar image into
their poster. When
the original artist
claimed infringement,
the movies producers
claimed fair use,
saying the poster was
a parody of New
Yorkers egocentric
nature.
 Case E
Ruled: Not Fair Use
The parody argument
was rejected the
work does not parody
the original, rather it
copies the originals
parody of New
Yorkers to market its
product.
(Steinberg v. Columbia Pictures
Industries, Inc., 663 F. Supp.
706 (S.D. N.Y. 1987).)
 Case F
An adult website
claimed that
Google infringed
by making
thumbnail versions
of the images it
had on the adult
website available
through its search
engine.
 Case F
Ruled: Fair Use
Google's use of
thumbnails viewed as
"highly
transformative" and
that "a search engine
provides an entirely
new use for the
original work

(Perfect 10, Inc. v. Amazon.com,

Inc., No. 06-55405 (9th Cir.
12/3/07).)
Case Z
Photographer
Mannie Garcia took
this photograph for
the Associated Press
(AP) in April 2006.
Case Z
Artist Shepherd Fairey
based the poster on the
right on that AP photo.
Reproduced on
campaign posters and
other media nationwide,
it went on to be an
iconic image in Obamas
presidential campaign.
 Case Z

AP produced
this graphic to
exemplify, in
their legal
opinion, that the
transformative
use of the
image is not
that significant.
Case Z: Is this Fair Use?

Answer: While there are strong

arguments on each side,
We wont know
until a Judge
makes a determination.
And early in 2011 the central complaint
against Shepherd Fairey was settled without a ruling,
with undisclosed terms, but with neither side conceding their
position on the Fair Use claim.
 Summaries of Fair Use Cases
Many of the previous cases, plus many more
addressing Fair Use determinations, are
referenced and briefly summarized here:

http://fairuse.stanford.edu/Copyright_and_Fair_Use_Overview/chapter9/9-c.html
Recommended Readings on Fair Use
Crews, Kenneth. Copyright Law for Librarians
and Educators. ALA Editions, 2005. 0-8389-
0906-X.
Russell, Carrie. Complete Copyright: An
Everyday Guide for Librarians. ALA Editions,
2004. 0-8389-3543-5.
Vaidhyanathan, Siva. Copyrights and
Copywrongs. NYU Press, 2001. 0-8147-8806-8.
 Key Web Resources on Fair Use
US Copyright code and Fair Use page, US
Copyright Office
http://www.copyright.gov/fls/fl102.html
ALA Copyright Advisory Network
http://www.librarycopyright.net/
Stanfords Copyright and Fair Use pages
http://fairuse.stanford.edu/
 Need Further Help?

The UCLA Library can help with questions about

Fair Use, and are available for consultations on your
Fair Use determinations.

email us: copyright@library.ucla.edu

 Acknowledgements
The preceding slides are based on the work of the
UCLA Library Scholarly Communications Steering
Committee
And,
Slides 5-10 and 15-20
Are adapted from the Applying the Fair Use Doctrine
Webinar, presented in Oct. 2009 by Kevin L. Smith (Duke
U.) and Steven J. McDonald (R.I. School of Design).
Though they probably could have been used under the Fair
Use Doctrine, they are instead used with permission.
 Questions?

Thank You!

Acknowledgements
The preceding slides are based on the work of the
UCLA Library Scholarly Communications Steering Committee
Photo from flickr: http://www.flickr.com/photos/marcobellucci/3534516458/